Page:Harvard Law Review Volume 5.djvu/291

275 RESTRICTIONS UPON THE USE OF LAND. 275 abstain from using the land purchased in a particular way, is what I never knew disputed. ... It is said that the covenant, being one which does not run with the land, this court cannot en- force it ; but the question is not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased. ... If an equity is attached to the property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased." In the leading cases in other jurisdictions, this same principle is laid down : the purchaser is bound because it is inequitable that he 'should escape liability, and this injustice exists either because he buys with notice, 1 or takes the land without giving value. 2 To put it technically, the purchaser is bound by the ordinary principles of constructive trusts, precisely as a purchaser of land from one who has previously contracted to sell it is bound by the contract. To raise such a constructive trust, it is essential (1; that there shall be a contract concerning the use of land ; (2) that it shall be one which equity can specifically enforce ; (3) that the intention shall be that the contract shall run with the land. Under such contract, the promisor incurs an equitable as well as a legal obligation. The equitable obligation ceases when he parts with the land, for the contract has reference to acts of the owner of the land, and a decree for performance, if at all, must be against the owner for the time being. That is, the equitable obli- gation binds the promisor not personally, but in respect of his ownership of the land. The equity is attached to the land in the same way that any trust is attached, and will follow the land until it comes into the hands of a bona fide purchaser. 3 Against the original owner of the land, a restriction is a question of specific performance of a contract : against a subsequent pur- chaser, the question is one of trusts. Although these principles are clearly recognized in the early cases, the courts of recent times have fallen into singularly con- 1 Whitney v. Union Ry. Co., 11 Gray, 359, at 364; Marshall v. Brewer, 19 N. J. Eq. 537' at 543> Barrows v. Richards, 8 Paige, 351. 'Prof. Langdell in 1 Harv. L. Rev. 65; Prof. Ames, 1 Harv. L. Rev. 3.
 * Wolfe v. Frost, 4 Sand. Ch. 72, at 88.